Tuesday, September 17, 2013

Should Libertarians support federalism?

A few months ago, in the wake of the Proposition 8 Supreme
Court case, a libertarian friend of mine made a Facebook post in which he
lamented libertarians’ odd affinity for federalism. “States rights”, he
claimed, were not “inherently good.” Federalism was only useful to the extent
that it engendered libertarian outcomes, he argued. States can violate
individual rights every bit as much as the federal government can, and in such
cases we oughtn’t hesitate to use the federal government as a way to maximize
libertarian utility. From gay marriage to abortion to flag burning to slavery,
states have a poor track record at defending liberty and we must not place so
much trust in them. Was my friend right?

I think he was partially right, but overly general about
which type of “rights” he’s referring to. I agree that the federal courts can
indeed strike down state laws – so long as what they are undoing is a violation
of constitutional rights, rather than just overturning anything libertarians
would subjectively label a rights violation. The trouble with the second
standard is that some people (particularly non-libertarians) have an extremely
expansive definition of what rights are, such that virtually any law could be
construed as violating somebody’s right to something. If we let the government
overturn any state law it likes so long as it’s “defending rights”, there
really aren’t many limits to what it can overturn, which opens the door to
abuses libertarians would not support.

There are many anti-libertarian state policies that I
believe fall beyond the constitutional scope of federal government. I don’t
want the federal government to get involved in those things, even if their
involvement would yield favorable libertarian outcomes in the short term,
because it their doing so would destroy the notion that the scope of federal
government is indeed limited.

For example, from a libertarian perspective, both censorship
and drug prohibition are rights violations. Fortunately for us, the
incorporated 1st amendment defends free speech across the whole
country. If some branch of the federal government overturned a state law that
censored certain speech, that’s great – they defended the liberty they are
constitutionally authorized to defend. But no such explicit protection exists
for smoking pot, and the 10th amendment to the constitution
essentially leaves states the freedom to craft their own criminal justice
systems. So to me, a congressional law which mandated the legalization of
marijuana across all 50 states would be an overreach. Of course, I’d be elated
by the outcome of universal
legalization, and admittedly I probably wouldn’t lose any sleep over the
release of nonviolent drug criminals. But if we say it’s okay to ignore the 10th
amendment in that case, what would the implications be for the rest of law?
Could the federal government then declare education a right and overturn
decisions at the local school district?

My friend was correct that states’ rights are not “inherently good”; oftentimes
state policies are even worse than the federal ones. In such cases, federalism
is frustrating. Whether its marijuana or gay marriage, state-by-state
legalization is slow and painstaking work. It’s highly tempting to view the
courts as a silver bullet by which to bypass that messiness and get what we
want right away. But I am hesitant to endorse the precedent that it’s okay to
ignore the constitution when it gets in the way of political convenience. Selective
application of 9th and 10th amendments is hypocritical
and dangerous. There's nothing anti-libertarian about respecting constitutional
federalism, even especially when some states disagree with us.

If we value our ideological consistency, we have to apply
the role of federalism evenly across all issues. And if given a choice between
the centralization and the distribution of power as a whole, the latter is
generally preferable. The framers recognized that, and I think more often than
not federalism turns out to be a pretty libertarian feature of our
constitution.